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Public: Recent News

The Summit on Civil Access to Justice in North Carolina
Friday, Oct. 12, 2007
Keynote Address of
Gene Nichol, President
The College of William and Mary

Gene Nichol delivers keynote address.

Thank you Madame Chief Justice. That’s a phrase I’ve always wanted to say, by the way. And never been able to. I’m particularly heartened it’s Madame Chief Justice Sarah Parker. Congratulations – and congratulations to the people of North Carolina.

I’m honored and beyond happy to be here. In the state, and in the university community, and legal community that I think of as home. Though I was able to sneak back here for the first time – in too long – last weekend, to help the Carolina community pay tribute to my friend Marion Cowell. And also see the Tar Heels whip up on the University of Miami – which is God’s work if ever there was. A sort of reverse hurricane. The first time in a while, I’d imagine, that the near sellout crowd was still in the stadium at the end of the game. Not talking about waiting for basketball. It’s been a tough year for the new faces – but things are, I’d venture, looking up. Though I used to be friends with Steve Spurrier. To I would want to make predictions there.

I’d be lying if I didn’t concede that I love to come back to Chapel Hill and drink of the waters – they don’t actually need a fountain at the Old Well – talking to bill Aycock and Bill Friday and Dickson Phillips and Henry Frye and Dan Pollitt and Julius Chambers – and so many here – it’s quite an elixir. Having heroes is a marvelous thing. And even when you know you can’t live up to their standards – it at least helps to be certain from which direction the sun does rise.

I’ll admit too that I’ve been reading one of America’s great new works of non-fiction – William Blythe’s “To Hate Like This is to be Happy Forever.” It’s a remarkable source of unbiased straightforward reporting. And it reminds me that I should begin, as I still frequently do, by saying that I hope your future skies are of that perfect, ennobling, encompassing Carolina blue – not the dark and menacing shade seen just eight miles up the road in Durham County. I’m honored to be here.

I love my present job – the College of William & Mary was a national treasure even before there was a nation to treasure it. I promised myself three years ago, when I left Chapel Hill, that I was going to get myself out of the newspapers for a change. That hasn’t really worked out. I have been honored to win such hearty support from folks like Bill O’Reilly and Newt Gingrich. I’ve been listening to Bruce Springsteen’s new album – and he has a line “you’ll take comfort in knowing you’ve been roundly blessed and cursed.” I find some reassurance in that.

I’m happy, as well, to have the assignment I’ve drawn – exploring the call to equal justice. Our greatest challenge as a profession. Perhaps our greatest challenge as a nation. But I will say, thankfully, to sketch out these concerns before this legal community – here in Carolina – that in my experience believes more fully, more potently, in the challenges of equal justice than others, in what is now a long career, others I have known. I’m not surprised, though I am heartened, that Janet Ward Black has pushed access to justice so hard in her presidency. It is, for this bar – in the blood, the sacrifices, the demands, the struggles of justice. You have seen, first hand, the darkness and the light. And you have taught much, in what Dr. (Frank Porter) Graham called, the charge to build “a nobler and fresher civilization in this ancient commonwealth.” I’ll try not to preach – especially from a distant academic perch. Reminded of Mark Twain’s claim that “to do right is noble. To advise others to do right is also noble, and much less trouble to yourself.”

So let me start with the obvious. We carve “equal justice under law” on our courthouse walls. It is the literal cornerstone of our system of adjudication. We swear fealty to it every day. For decades, we’ve announced as a fundamental principal of our constitutional law “there can be no equal justice when the kind of trial a person gets depends on the amount of money he has.” But the framework in which we operate has little in common with what we say.

Think about a set of facts that we all know to be true. Lawyers cost money. Some have it. Lots don’t. Yet unlike some industrial nations, we recognize no general right to representation in civil cases. We spend far less than other western democracies on subsidized legal representation. Less than 1 percent of our total expenditure for lawyers goes toward services for the poor. Legal aid budgets are capped at levels making effective representation of the poor a statistical impossibility. Even at that, they’ve been cut by about a third over the last dozen years.

We have one lawyer for every 400 people generally, and one legal services lawyer for every 7,000 persons living in poverty; in North Carolina reportedly one legal services lawyer for every 18,000 eligible citizens. Our legal services lawyers turn away 8 out of 10 clients with actionable claims. We fence folks out even further by creating categories of unworthy poor; and placing restrictions on the most efficient avenues for representation. Study after study shows about 80% of the legal need of the poor is unmet – in North Carolina, in Virginia, in the country. The circumstance is almost as bleak for middle income Americans.

As every person in this room knows, neither the billable hour nor the possibility of a significant contingent fee cover the waterfront of American legal disputes. New York’s state bar study a couple of years ago found that we leave the poor unrepresented on most crushing problems of life – divorce, child custody, domestic violence, housing, benefits. We think it natural that a commercial dispute between battling corporations takes six month to try, while the fate of a batter child is determined in only a few minutes. What passes for civil justice among the have-nots is breathtaking.

On the criminal side, we trivialize the right to counsel we have declared. Across the country, public defenders can have crushing caseloads. Rates of compensation for appointed lawyers are often absurd. Competitive bid schemes can make them worse – leading to what has been described as “meet ’em, greet ’em, and plead ’em” defense regimes.¹ We’ve developed laughable rules of constitutional effectiveness – what Deborah Rhode calls a “jurisprudence of dozing” – ruling not only inexperienced lawyers, but drunk lawyers, drugged lawyers, mentally ill lawyers, and sleeping lawyers can pass muster. One court explained that “the constitution does not say a lawyer has to be awake”; another ruled that sleeping “might have been a strategic ploy to gain sympathy from the jury.” This must have provided only modest consolation to the convicted client.

We enthuse about access and equality rhetorically. But we don’t make serious efforts to give them practical content. Average citizens are effectively priced out of the justice system. They’re also typically barred from participating in the closed regulatory scheme that excludes them. The system we have is powerfully, dramatically, and fundamentally at odds with who we say we are.

In studying the literature – as best a university president can do – I learned that “the best available research indicates that the American legal profession averages less than half an hour of work per week on pro bono services”² Most lawyers do no pro bono work at all. Recent affluence has eroded rather than expanded support for pro bono programs. Over the past fifteen years, the average revenue of the country’s most successful firms increased by over 60%. Pro bono hours dropped by one-third.

In law schools, issues of access to justice are either missing or marginalized in our curricula. Relatively little of our research focuses on what passes for justice among the poor. Our curriculum takes the present deployment of legal resources as a given. Who uses the system is unexplored. Law firms are not topics of study or critique. Despite the marvelous clinical programs expanding across the country, unequal access to justice has not made it to the core of legal education. Only ten percent of schools have pro bono requirements—and fewer than that apply them to faculty. The greatest shortcoming of American law schools may be the failure to explore and articulate a theory of the just deployment of legal resources.

And, without intending to, we’ve added to the problems of access by our own patterns of decision-making. Tuition has risen, particularly in public law schools, many multiples of inflation. Private school tuition dramatically exceeds that of the publics. Costs per student have soared in the past two decades—with institutions competing feverishly -- for star faculty and deans, supremacy in facilities, in technology, in expensive brochures sent across the land to convince unwilling recipients how terrific the schools are— and thus, against all odds, improve their rankings in US News. None of which add much, or perhaps anything, to the quality of educational experience.

Then young lawyers graduate owing $100,000 or more while public sector jobs around the country average starting salaries of about $40. Further taxing a legal system that already excludes the poor and the near-poor from voluntary access to civil justice. Law schools, of course, didn’t cause all this. But I’m loathe to think that, completely without justification, we’re guilty of piling on.

When we survey this landscape, I think we’re compelled to say that we would have hoped for more from our nation’s justice system. More from our country. And I think we’d say as well that these are but components of a set of much larger problems—larger betrayals of the command of equal justice. Denials that we’ve gotten used to – that have become commonplace – betrayals from which we have chosen to simply turn our gaze away. We’ve gotten used to things we should never have gotten used to. And we’ve apparently been satisfied.

1. But how can we be satisfied? When the richest nation on earth, the richest nation in human history, allows almost 37 million of its citizens to live in stark, unrelenting poverty? A quarter of black Americans. A fifth of Latinos. Almost one in five of our children—13 million—even higher percentages in North Carolina—one in four—as if any theory of justice or virtue could explain the exclusion of innocent children from the American dream.

2. And how can we be satisfied, when 47 million Americans have no health care coverage of any kind? Sixteen percent of North Carolinians. Leaving us alone among the industrial nations in failing to provide some form of universal coverage. When, as Dr. King proclaimed, inequality in access to health is the most pernicious discrimination of all?

3. How can we be satisfied when over 40,000 North Carolinians every year fall prey to domestic violence—most of them with no access to lawyers—though the legal system may be the only effective avenue to save their lives? As if the most endangered of us somehow don’t count. And so sometimes don’t survive.

4. And how can we be satisfied when, 50 years after the majestic phrases of Brown v Board of Education—all over the country schools are rapidly re-segregating. Removing meaningful racial integration from our national agenda. Ignoring Thurgood Marshall’s claim before the Supreme Court that ‘these plaintiffs seek the most vital right that can be claimed by children—the ‘right to be treated as entire citizens of the nation into which they have been born.’

5. And how can we be satisfied when in Virginia and North Carolina and across much of the country we allow rich and poor public schools—not just private schools mind you, but rich and poor public schools. As if it were thought acceptable to treat some of our children as second and third class citizens. Our religions teach that all children are equal in the eyes of God. We operate our schools as if we didn’t believe it.

6. And how can we be satisfied when a new study concludes higher education is more economically polarized today than at any time in the last three decades? So that if you come from a family making over $90,000 a year, your chances of getting a college degree by age 24 are better than one in two. If your family makes $35,000 or less, the odds are one in 17. One in 17. As if intellect and character and commitment, and worth, were hereditary.

7. And how can we be satisfied when my own institution, and other distinguished universities across the nation, still have so much to do to demonstrate, in our Chancellor, Justice O’Connor’s words, that these distinctive paths to leadership are “visibly open” to all segments of society.

The frank truth is that if the exclusions and indignities of American race and poverty are right, then the Constitution is wrong.

If the debilitations of those locked at the bottom are acceptable, then our scriptures are wrong.

If these denials of equal citizenship and equal dignity are permissible, then we pledge allegiance to a cynical illusion, not to a foundational creed.

So that’s why your work triggered here—to make the promises of justice real—in the bar, in the courts, at legal services, in the law schools, in the state house, is so crucial, so defining. I hope that, together, we’ll begin to insist upon a higher calling of public obligation—a more demanding and optimistic vision of professionalism, of citizenship. One born in, dependent on, dedicated to – the foundational American aspiration of equal justice. I hope that we will declare our commitment to it. We’ll enroll our hearts. We’ll enlist our spirits. We’ll mark our lives. We’ll enlist because …

1. Somewhere we read, “we hold these truths to be self-evident that all are created equal.’

2. And somewhere we read, the ‘central purpose of America is that the weak would gradually made stronger and ultimately all would have an equal chance’.

3. And somewhere we read, that “injustice anywhere is a threat to justice everywhere.’

4. And somewhere we read, “history will judge us on the extent to which we use our gifts to lighten and enrich the lives of our fellows.’

5. And somewhere we read, “the arc of the moral universe is long, but it bends toward justice.’

6. And somewhere we read, we have ‘to believe the things we teach our children.’ Believe them and make them real.

7. And somewhere we read, that ‘whenever you did these things to the least of these, you did them to me.’

8. And somewhere we read ‘you reap what you sow.’

9. And somewhere we read that the pursuit of justice and the pursuit of happiness march not in opposite directions but hand in hand.’

10. And somewhere we read, no, we are not satisfied and we shall not be satisfied ‘til justice rolls down like waters and righteousness like a mighty stream.”

Thank you.

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1. Deborah Rhode, Access to Justice, 69 Fordham Law Review 1785 (2001).

2. Deborah Rhode, Access to Justice, 69 Fordham Law Review 1785, 1810 (2001).